"As a government organization, we are required by law to respond to requests for public information. I am comforted knowing that I can respond quickly for any search that involves email using NearPoint."
— Bruce Lorimer, Information System Supervisor, Madera County
Corporate civil litigation is a costly, time consuming proposition. If a company is not aware of its preservation duties and does not have an effective strategy to implement, there are many traps it can fall into in the very early stages of civil litigation. One of the major risks is ensuring automatic record deletion has stopped when litigation is anticipated or pending. The rise of electronically stored information (ESI) as the main form of data in companies for communications, both for supporting documents and business transactions has made email, SharePoint data and other File System documents a prime target for electronic discovery (eDiscovery). Yet, due to the distributed systems in which ESI resides, identifying the correct documents to hold and then ensuring the hold is placed presents a major challenge of organizations of all sizes.
A litigation hold or stop destruction request is a notice to persons within a company to stop the routine records destruction procedures for records that are anticipated to be or are required in an upcoming legal proceeding. This order must alert employees to the risk to the company itself and the employee personally if they fail to heed the litigation hold request.
A litigation hold applies to all existing, and future responsive records, documents, files, emails, both electronic and hardcopy. In many companies, the email system followed closely by the SharePoint repository are the largest repositories of responsive records due to the nature of business in these times. Email messages can include business instructions, legal contracts, financial data, presentations, and unguarded opinions about many business related activities, and is therefore a major target of discovery in litigation.
Stopping the destruction of Exchange email, including calendar entries, contacts, drafts, task lists, and SharePoint records because of anticipated or pending litigation is an absolute must and is very challenging. Companies around the world are experiencing higher risk levels based on increased litigation, more intrusive discovery requirements, and legal strategies taking advantage of this difficulty. Recognizing and planning for litigation holds and discovery can dramatically lower the adverse effects on your employees and lower your overall cost of legal defense.
Most corporate legal departments treat a litigation hold as a one-time communication (usually an email) to employees ordering all information relating to specific content be held and protected for possible production in an anticipated or pending legal case. Many companies wrongly believe an email message to the employee base removes responsibility from the company and transfers it to the employee. In most cases, this email is all the employees will ever see in reference to this request and is rarely officially removed at case settlement.
This practice does not ensure all responsive electronic records are protected. For example, some employees could be behind in reviewing their incoming email and they may not actually read it for weeks. Some employees may be on the road and may not sync to their company email systems for days. Some employees may have reached their mailbox limit and not see the litigation hold message because their email box is refusing new emails. Of course, as cases often last for extended periods of time it's easy to see how even the most diligent employee could forget about a corporate communication sent months or years earlier.
A company's failure to quickly impose a litigation hold on all responsive records, including email and SharePoint data can result in court-ordered sanctions, including monetary sanctions and the imposition of adverse inference instructions relating to the information destroyed because an effective litigation hold was not put in place and refreshed in a timely manner.
An effective litigation hold process requires careful planning and preparation to implement. A vital part of any smart litigation hold strategy is leveraging leading technologies to produce the most effective solution. The Mimosa NearPoint™ content archive and eDiscovery Option automate the litigation hold process by ensuring that potentially responsive data is proactively captured and indexed so data can be immediately preserved with a litigation hold within minutes.
Without NearPoint, the manual litigation hold process is both time consuming and costly and will not completely erase spoliation risk. Automating the processes with NearPoint will lower your risk for spoliation; reduce your overall legal costs and increase IT and end-user productivity.
NearPoint and the eDiscovery Option raise the bar for legal discovery on ESI archiving. It delivers improvements for all the major steps of litigation hold and legal discovery versus traditional methods.
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